Consider this approach to the ADA interactive process

Yesterday, the Americans with Disabilities Act turned 25. To celebrate the 25th anniversary, the EEOC has created a new resource (here), which addresses the state of the ADA, lists important milestones, and offers links to a series of ADA resources.

Save the Family and Medical Leave Act, I get more calls about the ADA from business owners, HR professionals, and decisionmakers, than any other employment law.

The ADA provides broad coverage for employees.

Predominantly, the issues we discuss focus on accommodations. That’s because the ADA Amendments Act, which went into effect on January 1, 2009, was so expansive that it effectively lowered the “disability” bar to the point where it’s nearly a given that an employee who claims to have a disability actually has one. I don’t say this pejoratively. Indeed, that was the intent of the Amendments Act: broader coverage.

The focus is now on accommodations.

With employers, I often address FMLA/ADA interplay, pregnancy/ADA interplay, medical examinations, and the interactive process. Last week, at EEOC TAPS in Philadelphia, where I co-presented a session on ADA hot topics, we spent a lot of time talking about the interactive process. As management-side employment lawyers, many of us are conditioned to reminding employers that, while this good-faith process may yield a number of possibilities to allow an employee to perform the essential functions of the job, the law doesn’t mandate that employee get his/her first choice of accommodations. Rather, where a menu of reasonable accommodations are available, the employer can make that call. This is consistent with the requirements of the ADA; namely, to afford a reasonable accommodation, which will enable an employee with an ADA “disability” to be able to perform the essential functions of the job. You’ll find plenty of case law to support this.

But, maybe, the employee’s preference of reasonable accommodation should control.

I don’t say this as a matter of law. Rather, I offer this pragmatic approach.

The scenario outlined above, with a bunch of accommodation options discussed during the interactive process, assumes that each of the accommodations considered will actually work. Many times, the employer offers what it believes is reasonable, only to find out that the employee still can’t perform the essential functions of the job.

Even in a situation where what the employer offers is reasonable, if the employee seeks another reasonable accommodation, why not provide it? Maybe the reasonable accommodation that the employee requests is the most expensive reasonable accommodation. But, there’s that word again: reasonable. Yes, it may cost a few more dollars, or it may not be as reasonable as that which employer proposed. But, the long-term litigation cost of splitting hairs may outweigh the short-term savings of giving the employee his/her preference. Plus, there’s the morale killer of hard bargaining with an employee with a disability.

If what the employee requests is a reasonable accommodation, consider providing it with no questions asked.

CONTRIBUTOR:

Eric B. Meyer

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? If you want a nerdy employment-lawyer brain to help you solve HR-compliance issues proactively before the action sequence, as a Partner of a national law firm, FisherBroyles, LLP, I’m here to help. I'm not only an EEOC-approved trainer, I offer day-to-day employment counseling, workplace audits and investigations, and other prophylactic measures to keep your workplace working while you focus on running your business. And for those employers in the midst of conflict, I bring all of my know-how to bear as your zealous advocate. I’m a trial-tested, experienced litigator that has represented companies of all sizes in a veritable alphabet soup of employment law claims, such as the ADA, ADEA, CEPA, FMLA, FLSA, NJLAD, PHRA, Title VII, and USERRA. I also help clients litigate disputes involving restrictive covenants such as non-competition and non-solicitation agreements, as well as conflicts over use of trade secrets and other confidential information. For more about me, my practice, and my firm, click on my full bio.